Pearsall v. Rosebrook

.Smith, J.

In my opinion, jurisdiction to entertain an action for partition by an infant is not conferred by the Code of Civil Procedure. The Code provisions for the appointment of a guardian ad litem, and requiring the consent of the surrogate for the maintenance of the action by an infant plaintiff, are intended to regulate the exercise of that jurisdiction, and as it has been held that the failure to appoint a guardian ad litem affects only the regularity of the procedure (Rima v. Rossie Iron Works, 120 N. Y. 433), it follows that the omission to obtain the consent of the surrogate before the commencement of the action may be subsequently supplied.

"Motion denied.